Citation Nr: 0838662
Decision Date: 11/07/08 Archive Date: 11/18/08
DOCKET NO. 04-10 554 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Oakland, California
THE ISSUES
1. Entitlement to a rating in excess of 50 percent for post-
traumatic stress disorder (PTSD).
2. Entitlement to a total disability rating based on
individual unemployability due to service connected
disabilities (TDIU).
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
D. Bredehorst
INTRODUCTION
The appellant is a veteran who served on active duty from
October 1938 to June 1964. These matters are before the
Board of Veterans' Appeals (Board) on appeal from a July 2003
rating decision by the Oakland RO. In May 2007, the case was
remanded to the RO for additional development and notice.
Please note the case has been advanced on the Board's docket
pursuant to 38 C.F.R. § 20.900(c)(2008). 38 U.S.C.A.
§ 7107(a)(2)(West 2002).
The appeal is being REMANDED to the RO via the Appeals
Management Center (AMC), in Washington, DC. VA will notify
the veteran if any action on his part is required.
REMAND
The Board's May 2007 remand, in part, was for the RO to
secure for the record complete records of all treatment the
veteran has received for psychiatric (emphasis added)
disability since December 2003. The records secured in
response are voluminous (adding two additional volumes to the
claims file); however, most are not relevant to the matter at
hand (as they do not pertain to psychiatric treatment, but
describe recent daily self-care needs assistance the veteran
receives). They add nothing to the evidentiary development
of the matters at hand, and if anything delay the process as
they obscure what is pertinent and add to processing time
(for review of records for relevancy). What is especially
significant about this in the matter at hand is that the
psychiatric treatment records which were sought in the May
2007 remand have not been secured, but remain outstanding.
Specifically, in June 2008 a VA consulting psychologist
reviewed the veteran's claims file and VA "E"
[electronic/computer] records at the RO's request (as the
veteran could not be examined). The psychologist cited
specific (apparently "E") records, including reports of
March 17, 2004 and July 15, 2005 neuro rehab consults and the
report of a January 27, 2006 VA evaluation. On close review
of the now quite voluminous records associated with the
veteran's claims file, the Board found that neither the
report of the July 15, 2005 neuro rehab consult nor the
January 27, 2006 examination report have been associated with
the veteran's claims file. Hence, it is clear that pertinent
VA records, constructively of record, remain outstanding.
Inasmuch as the consulting psychologist appears to have
relied heavily on the cited reports, the RO's subsequent
adjudication of the matters on appeal was based on an
incomplete record (and the record forwarded to the Board
remains incomplete).
Furthermore, the June 2008 VA consulting psychologist
indicated, in essence, that the veteran's psychiatric
disability was clouded by a co-existing dementia which
exacerbated his PTSD (and that impairment due to PTSD could
not be distinguished from impairment due to dementia). In
that regard, it is noteworthy that the Board's May 2007
remand in part specifically requested that the veteran be
examined by a psychiatrist. Such level of expertise of the
examiner was sought not on a whim, but because of such
examiner would have medical training/experience in the
specialty jurisdiction at issue (and would presumably be
better qualified to provide an opinion regarding the etiology
of cognitive impairment than someone who has not had such
medical training). Under Stegall v. West, 11 Vet. App. 268
(1998), a remand by the Board confers on the veteran, as a
matter of law, the right to compliance with the remand
orders. Accordingly, the case must be remanded for
compliance with previous remand mandates.
Furthermore, during the pendency of this appeal, the Court
outlined the notice that is necessary in a claim for an
increased rating. Vazquez-Flores v. Peake, 22 Vet. App. 37,
43-44 (2008). The Court held, in essence, that the Secretary
must notify the claimant that, to substantiate a claim, the
claimant must provide (or ask the Secretary to obtain) (1)
evidence of a worsening of the condition and its impact on
employment and daily life; (2) how disability ratings are
assigned; (3) general notice of any diagnostic code criteria
for a higher rating that would not be satisfied by evidence
of a noticeable worsening of symptoms and effect on
functioning (such as a specific measurement or test result);
and (4) examples of the types of medical and lay evidence the
veteran may submit to support an increased rating claim. As
the case is being remanded anyway, the RO will have the
opportunity to provide such notice. In a further decision
issued during the pendency of this appeal, the Court held
that "staged" ratings may be appropriate in an increased
rating claim where the factual findings show distinct time
periods when the service-connected disability exhibits
symptoms that would warrant different ratings. Hart v.
Mansfield, 21 Vet. App. 505 (2007).
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's
docket pursuant to 38 C.F.R. § 20.900(c)(2008). Expedited
handling is requested.)
1. The RO must provide the veteran the
specific notice required in increased
compensation claims, as outlined by the
Court in Vazquez-Flores v. Peake, 22 Vet.
App. 37 (2008), specifically including
notice that the Secretary must notify the
claimant that, to substantiate such
claim, the claimant must provide (or ask
the Secretary to obtain) (1) evidence of
a worsening of the condition and its
impact on employment and daily life; (2)
how disability ratings are assigned; (3)
general notice of the criteria for a
higher rating for PTSD under 38 C.F.R. §
4.130, Code 9413; and (4) examples of the
types of medical and lay evidence the
veteran may submit to support an
increased rating claim, to specifically
include a claim for TDIU. The veteran
must be afforded adequate time to
respond.
2. The RO must secure for association
with the claims file the complete records
pertaining (only, further daily needs
care records should not be included) to
all VA treatment and evaluation the
veteran has received for psychiatric
disability since December 2003 (to
specifically include the report of a July
15, 2005 neuro rehab consult and the
report of a January 27, 2006 examination
by Dr. L).
3. The RO should then arrange for the
veteran's complete claims file to be
forwarded to a psychiatrist for review
and a medical advisory opinion responding
to the following questions:
(a) Are the veteran's current psychiatric
symptoms and cognitive impairment all
attributable to his service connected
PTSD, or is some such impairment due to
co-existing (and nonservice-connected)
disability?
(b) If the response to #1 is that some of
the psychiatric symptoms/cognitive
impairment are due to co-existing
disability, what psychiatric
symptoms/cognitive impairment shown by
the record are attributable to the
veteran's service connected PTSD, and
what symptoms/cognitive impairment (if
any) are attributable solely to the other
(and nonservice connected) co-existing
disability.
(c) If the record reflects that the
current level of psychiatric/cognitive
impairment due to PTSD has not been
present throughout since January 2003,
the examiner should express an opinion as
to when the current level of impairment
was first shown, as reflected by the
record.
4. The RO should then readjudicate the
claims (to include consideration of
"staged" ratings if indicated by the
record. If either remains denied, the RO
should issue an appropriate supplemental
statement of the case (SSOC), and afford
the veteran and his representative the
opportunity to respond. The case should
then be returned to the Board.
The appellant has the right to submit additional evidence and
argument on the matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims
must be afforded expeditious treatment by the RO. The law
requires that all claims that are remanded by the Board for
additional development or other appropriate action must be
handled in an expeditious manner.
_________________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2008).